Sri Lanka’s accountability crisis

Five years after the end of the armed conflict between Sri Lankan armed forces and the Liberation Tigers of Tamil Eelam, Sri Lanka is in a deeply precarious position. A recent UN Human Rights Council resolution calls for an international investigation into alleged crimes.

“The worst of their deeds we will never know: that we must be prepared to accept. To know the worst, we will have to extrapolate and use the imagination. The worst is likely to be whatever we think them capable of (capable of ordering, capable of turning a blind eye to); and what they are capable of is, all too plainly, anything.” – J.M. Coetzee, Diary of a Bad Year.

On 17 May 2009 President Mahinda Rajapaksa cut short his visit to Jordan, and made a triumphant return to Sri Lanka. He signaled to the country, with supreme confidence, that the war between the Sri Lankan armed forces and the Liberation Tigers of Tamil Eelam (LTTE) had ended. Confirmation came later the next day; the much dreaded LTTE leader was pronounced dead. The long war was indeed over. There was dancing and jubilation in the streets. Sri Lanka’s post-war woes had just begun.

International probe

Five years after the war, Sri Lanka is in the grip of an almost inescapable accountability crisis. Over the years, innumerable allegations have been leveled against the parties for committing war crimes and crimes against humanity, especially during the last stages of the war. Given the total decimation of the LTTE leadership, the critical bite of these allegations has been mostly felt by the Sri Lankan leadership and its armed forces. And in March 2014, the UN Human Rights Council (UNHRC) adopted a resolution (A/HRC/25/L.1/Rev.1) which heightened the need for an accountability process.

The first and principal feature of the resolution is its unprecedented call for an international probe. It requests the Office of the High Commissioner for Human Rights (OHCHR) to “undertake a comprehensive investigation” into crimes and abuses committed by both parties, during the period from 2002 to 2009. This was inevitable, since in 2012 and 2013, the UNHRC had, with the support of India, adopted resolutions asking the Sri Lankan government to conduct a credible domestic investigation.

Secondly, the resolution also seeks to correct a widely prevalent but distorted view in Sri Lanka about truth-seeking mechanisms, a view which holds that such mechanisms should provide a blanket pardon to all those who have been alleged of committing serious crimes. Rather, as the resolution states, truth-seeking mechanisms “that investigate patterns of human rights violations and their causes and consequences are important tools that can complement judicial processes”, and should be founded upon the consultation of victims as well.

Thirdly, the resolution highlights the continuing pattern of human rights violations in the country, referring in particular to attacks on religious places of worship that have been taking place especially during the past few years. In June this year, Sri Lanka witnessed one of the worst cases of religious riots in the country, between the Sinhala-Buddhist majority and the Muslim minority, resulting in the killing of three Muslim men. Such incidents, along with numerous other killings and abductions (including of innocent Sinhala people), remain to be properly investigated, further highlighting the depths of the accountability crisis in the country.

However, it would be too early to comment on the true impact of the resolution.

The resolution was adopted with the approval of 23 of the 47 members of the UNHRC; but the Asian member states were largely against the resolution (including Pakistan and China), or abstained from voting (including India, Indonesia and Japan). The international probe now is set to be conducted without the active support of the regional group that can exert the most pressure on Sri Lanka. The fact that the main sponsor of the resolution was the US, a principal foe of international accountability mechanisms, does not in any way help further the accountability cause, especially in the context of its predictable response to Israeli attacks on Gaza.

Furthermore, it is unclear whether the resolution would have any impact on the ground. For example, it omits reference to Sri Lanka’s problematic domestic legislation, such as the Prevention of Terrorism Act (PTA) and the need for repeal of such laws. It is a surprising omission, given that the UNHRC had earlier adopted resolutions (for example, “Civil Society Space” of 23 September 2013), which recognize the urgency with which such laws should be repealed. What must be remembered is that there were arrests of human rights defenders and activists even while the UNHRC sessions in March were underway, under the pretext that terrorism was resurging in the former conflict areas.

The resolution does not give accurate expression to the political solution demanded by the Tamil people. It applauds the Sri Lankan government for holding the Northern Provincial Council election in September 2013, and calls for the full implementation of the Thirteenth Amendment to the Constitution which devolves some powers to the provincial councils established around the country, including in the north and east (Tamil majority provinces). But this hardly gives expression to the more serious fact that the landslide victory whereby the Tamil National Alliance (TNA) garnered over 78 percent of the vote, was in support of a political solution which recognized the self-determination of the Tamil people and a federal structure within a united Sri Lanka.

Responses and complications

One of the overarching concerns related to the 2014 resolution is its call for an international probe in addition to a domestic investigation. This complicates the search for accountability, as it opens up space for two contending and parallel processes, which are now under way.

On the one hand, Sri Lanka had established in August 2013 a Presidential Commission of Inquiry which investigated cases of missing persons. Its mandate has now been expanded (through a gazette notification on 15 July 2014) to include an inquiry into possible violations of humanitarian and human rights law during the last stages of the conflict. This Commission is to be assisted by an Advisory Council made up of international experts, comprising of Sir Desmond de Silva QC, Sir Geoffrey Nice QC, and Professor David Crane.

Yet, the establishment of the domestic Commission, especially the expansion of its original mandate, appears to be a clear result of international pressure. Whether the new mandate would over-burden the Commission is another serious concern raised by civil society groups. It is headed by three local commissioners, two of whom were also members of a government-appointed Lessons Learnt and Reconciliation Commission (LLRC), which in its 2011 report, conclusively held that the Sri Lankan armed forces had not deliberately targeted any civilians. As critics point out, the overall message of the present Commission will not be any different, and it will be interesting to observe the reaction of the Advisory Panel. That will decide whether their role was to act as independent advisors, or as ‘defence counsel’ for the Sri Lankan government.

On the other hand, the OHCHR is also in the process of carrying out a comprehensive investigation with the assistance of international experts, including Martti Ahtisaari, former Finnish President, Special Envoy for Kosovo and the architect of the famous 2007 ‘Comprehensive Proposal for the Kosovo Status Settlement’. As a member of The Elders (a body of global leaders, founded by the late Nelson Mandela), he had earlier written that Sri Lanka’s approach to human rights and its clampdown on critics “deserves a far tougher response from the international community”, and that the prevailing fear and suspicion even after the war can be overcome through “greater accountability of both parties to the conflict.” He has also cautioned that countries should not take “courage from Sri Lanka’s apparent success at avoiding international reproach.” Such sentiments would reveal the nature of the possible outcome of the international investigation.

In short, in the absence of any domestic political pressure as well as regional (diplomatic) pressure, any positive development on the accountability front is hardly unlikely. Perhaps the only critical development will come with the release of the final report of the international panel, in March 2015. Its immediate effect within the country remains unclear, given that Sri Lanka is scheduled to hold presidential and parliamentary elections around that time, with the incumbent leadership confident of another victory. However, a very critical report by the international investigatory panel, now with the UN imprimatur, will encourage the efforts made overseas at holding travelling government and army officials accountable in foreign courts. In the long term, a very critical report might just have the potential of being a vital source that would one day further legitimize the Tamil people’s search for a political future which goes beyond the present demand for federalism.

The use and abuse of accountability

Sri Lanka’s historical record of holding alleged perpetrators of human rights and humanitarian law violations has been a poor one, even under past regimes. And this failed past does better explain the seriousness of the present post-war crisis.

It is a crisis which is also a by-product of the deep ethnic polarization in the country. The ‘truth’ to the Sinhala majority was the LTTE’s terrorism; ‘justice’, its complete decimation. The Tamils resist this narrative; for them, the LTTE was principally an entity which stood against majoritarian hegemony. This is part of the unpalatable truth. And both parties, albeit in unequal measure, are guilty of not taking the concept of accountability more seriously, especially during the course of the three-decade-old violent struggle; with ‘accountability’ now being a misused and abused term that connotes a meaning of revenge or vengeance, in domestic political discourse.

One will never know, with absolute precision, what occurred during the war. The lives lost during war are lost forever; the hurt remains deeply etched in a thousand places. But it is necessary that all allegations of serious violations of humanitarian and human rights law are credibly investigated, and systematic patterns of abuse exposed. That would still not end the search for different kinds of ‘truth’ and ‘justice’, but it might hopefully open up some space for re-imagining a Sri Lanka, a little more reconciled, a little more united, than the one today.